Streaming of Unlicensed Sports Events is Fair Use

[Update: Please note that though most of the copyright fundamental decisions in the judgement describe below were later overturned by the Israeli Supreme Court, the main issue of not exposing defendant's identity was not overturned.
Yet this judgment is worth studying due to its groundbreaking thought and explanations]
This article is about fair use, breach of copyright, public rights and other goodies. We deal here with Case No. 1636/08, Motion 11646/08, The Football Association Premier League Ltd. V. Ploni and others, [link to the Hebrew decison] Tel Aviv District court, Judge Agmon-Gonen, Sept. 2, 2009 (For the plaintiff Adv. Meir Klinger; For the defendant Adv. Yoram Lichtenstein; For the Israeli Attorney General Adv. Shamai Becker). So please take notice – this is a biased article as we represented "Ploni" (and won…).

The decision regards copyright protection for streaming live football (soccer to our American readers). The decision tackles several major issues, including international jurisdiction over the Internet, Israeli John Doe procedure, what constitutes a copyright protected work and what constitutes copyright infringement (whether streaming live sports over the Internet breaches copyright at all), and more. But the main issues that caused the greatest stir here in Israel were (1) the manner in which the court defined and addressed the public's right to access copyrighted material (yes!), and (2) the unorthodox analysis of fair use under Israeli law.

User “Rights” or Rights? The court addressed the public’s rights under the law (such as fair use) as a “right”, i.e., a legal right that is accompanied by a duty of another (the copyright holders) to allow that practice. Accordingly the court’s reasoning potentially creates new causes of action when a copyright owner deprives users of protected “rights.” If, for example, a software developer uses Digital Rights Management (DRM) to limit a person’s right to back up her legally purchased copy of the software or use it on another personal computer, the user may sue the developer for inappropriately restricting the user’s rights.

Fair Use Copyright allows the creator a limited monopoly on his or her work. Nevertheless, the public has certain rights of use in the same work while it is still under copyright. Unfortunately, this balance is rarely struck in Israeli or in international rulings. Fortunately, Judge Agmon-Gonen, a fearless and eloquent judge, confronts those two rights head on, based on the following circumstances. The purpose and nature of the use: The judge clearly stated that a use for commercial purposes may still be regarded as fair if it has significant social value and benefit. She further concluded that the John Doe's activity here (making important sport events accessible to the public for little or no payment) is socially important and carry significant social gains. The judge referred to Kelly v. Arriba Soft and the Perfect 10 v. Amazon and Google cases as examples where social importance overrode the commercial purpose of the alleged infringement. The judge then delved into a very interesting analysis of the sociological importance of soccer (and sports at large) and the importance of making it accessible to the public. Making soccer available only to the wealthy is unacceptable, stated the judge. The court accepted our premises that the change in culture and the development of the Internet and Internet culture may be the leading way to return sports to the lives masses. Nature of the Work: The judge concluded that live coverage of soccer matches is protected under copyright law but is not part of copyright’s “core.” The main content of sporting events is factual; the artistic value of such work is minimal and not the reason for its popularity. Amount of the Work Taken: The judge said that no evidence was presented upon which an informed decision could be reached regarding the quality of the infringement. Effect on the Market: The court stated that we cannot categorically say that any use will damage the value of the work, and in this case the court does not consider the accumulated consequences of other similar breaches.

Conclusion The judge accepted the Doe's position that some soccer events and sporting events generally, have a significant cultural and social value. As such, certain uses of protected works are still fair use despite their commercial considerations and potential damage to the rights holder. The basis of the judge's decision rests on the public's rights and on the duty imposed on the copyright holders to modify their business model in a manner that will not breach the public's rights. For example (and I am no economic consultant), if the FAPL embraces the Olympic model of sponsorships and advertisements, “pirates” such as the John Doe in this case will become the FAPL’s best friends as they will increase the value of the works and the games and not damage them. This appears to be a win-win solution for both the copyright holders and the public. I dare to say, this judgment is a wakeup call to copyright holders to open their eyes and recognize that the pendulum is swinging back in favor of the public. The Internet is here to stay, and the resulting economic shift will not go away. Thus, I believe that the main tenets of the judgment will survive a possible appeal. That does not mean we should pirate and damage the copyright holders freely, but it does mean that the copyright holders need to find better models that will allow them their profit (which I’m all for) without infringing the public's rights and us, the public, need better protect our rights.

September 2009

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